By Tom McDowell (firstname.lastname@example.org) I come to the subject of judicial term limits (Amendment 40 on Colorado's November ballot) out of a sense of moral outrage, and as Morton Blackwell has said: “Moral outrage is the most powerful motivating force in politics.”
I often write for a blog under the pen name “Not Legal Roadkill Yet.” My blog has two basic premises. One is not germane here, but the other is that lawyers protect judges, judges protect lawyers, but no one protects the public: The Colorado Supreme Court is both the author and enforcer of ethics rules for judges and lawyers. Its ethics rules are designed to appear effective on paper but its court rules often make it impossible for a citizen to make a complaint without going through his attorney and the trial judge. Trial judges are up for retention every six years. Human nature suggests that judges who do not forward complaints will naturally be rated higher by attorneys than judges who do.
There are four attorneys on each retention commission, and judges who actively protect attorneys could themselves receive protection. Since commissions operate in secret, the public would never know it was happening. This year my judge in a six year old lawsuit was up for retention. Over a three year period, he had made no effort to protect me from repetitive outlandish conduct by opposing counsel. Consequently, I submitted very detailed public input to the retention commission, supported by 200 pages of court documents. The commission’s output was so fawning that I wrote the chairperson an email regretting that the judge they were describing to the public had not once showed up in my litigation. The commission had looked at my materials but determined that the judge was an “asset to the community.” It is telling that no court honors the “asset to the community” defense in litigation..
A common argument against judicial term limits is that retention commissions eliminate bad judges. That is plainly false.
Another common argument is that term limits somehow upsets “judicial independence.”
Lawyers who make it would prefer that the public not know that the legal profession has its own judge who is appointed by and serves at the pleasure of the Supreme Court. CRCP 251.16 establishes the Office of the Presiding Disciplinary Judge and states that it will operate under a budget approved by the supreme court. This judge rules on attorney discipline issues which directly impacts the legal profession. Appeals from this judge’s decisions go straight to the Supreme Court. There can be no claim that this is an independent judge.
I have observed elsewhere that it is entirely possible 1) for an attorney to use intentionally dilatory practices to inflict thousands of dollars in damages on an opposing party; 2) for a damaged party to be forced to follow court rules and spend thousands more to make a complaint through both his attorney and the trial judge, only to be rebuffed; or 3) to have the complaint make it to Attorney Regulation only to have this judge issue a mild penalty.
Lawyers, as a profession, are quite comfortable with judges their profession controls, and whose rulings impact them, but vocally oppose any threat to “judicial independence” by others. Go Figure.
The best evidence I can offer that the Supreme Court has no interest in reforming the ethics mess on its own is the lack of response to a letter I wrote offering to share what I had learned by being a citizen member of various rules committees. I didn’t even get a “thank you for your interest” letter.
My favorite argument against change was made by an attorney who first assumed that I didn’t know about the Office of Attorney Regulation and the Commission on Judicial Discipline (both supervised by the Supreme Court). When I told him that each had referred me to the other in my efforts to stop attorney misconduct, he then suggested that I wait until my judge was up for retention and make a complaint to the Commission on Judicial Retention. When I told him how carefully I had done that and the results of that input, he fell back on “Don’t throw the baby out with the bath water.”
My experience demonstrates that in the area of legal ethics, the baby is dead, the corpse is rotting, the water is putrid, and common decency requires a respectful, but quick burial of the whole system.
Yes, I favor term limits, and much more, but term limits is a start.